Attorney General v Katiba Institute & 23 others (Civil Appeal (Application) E031 of 2026) [2026] KECA 564 (KLR)
The bottom line
#The Court of Appeal has paused a ruling that declared Presidential Advisor offices unconstitutional, so the advisors keep working while the appeal is decided.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for stay of execution of the judgment and orders of the High Court dated 22nd January 2026 is merited under Rule 5(2)(b) of the Court of Appeal Rules
Key legal issues
#The test for grant of a stay of execution under Rule 5(2)(b) of the Court of Appeal Rules
The applicant must show the intended appeal is arguable (not frivolous) and that it will be rendered nugatory absent a stay; in constitutional public-interest matters a third condition - that it is in the public interest that stay be granted - may apply.
The Court restated the settled principles from Trust Bank v Investech and adopted the Supreme Court's Munya v Kithinji third condition of public interest. The discretion under Rule 5(2)(b) is original, independent and discretionary but must be exercised judiciously and rationally, not impulsively or out of sympathy, against the facts of each case.
Whether the nugatory limb was satisfied where the affected advisors were already in office
It was satisfied: the 3rd to 23rd Respondents were already in office rendering services when the judgment declared their offices unconstitutional, so declining a stay would likely disrupt the functions of the Office of the President, distinguishing CAS 2 where appointees had not assumed office.
The Court applied its own precedents CAS 1 and CAS 2, aligning the case with CAS 1 (officers already in office, stay granted) rather than CAS 2 (appointees yet to assume office, stay refused). The 1st Respondent's duplication-of-roles objection was held to be an issue for the substantive appeal. A proportionality evaluation between competing public-interest positions supported the grant.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin test that the intended appeal is arguable and that it would be rendered nugatory absent a stay; in constitutional matters a third public-interest condition may be added, and where the officials whose offices were declared unconstitutional were already in office and rendering services, a stay will be granted to preserve institutional continuity pending appeal.
Court orders
#- 1.An order staying execution of the judgment and orders of the High Court of 22nd January 2026 in Constitutional Petition No. E 317 of 2025, including the declaration of unconstitutionality of the creation of the offices of Presidential Advisors, pending the hearing and determination of the intended appeal
- 2.A recommendation to the President of the Court that the intended appeal be heard on a priority basis
- 3.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Constitutional Petition No. E 317 of 2025
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; Articles 25, 47 and 50 of the Constitution; sections 3, 3A & 3B of the Appellate Jurisdiction Act
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
An order is therefore issued staying the execution of the impugned judgment pending the hearing and determination of the intended appeal.
The costs of this application shall abide by the outcome of the intended appeal.
Considering that the intended appeal raises issues of great public interest, we recommend to the President of the Court that the intended appeal should be heard on a priority basis.
The jurisdiction of this Court under the said Rule is original, independent and discretionary. However, we must exercise this discretion judiciously and rationally and not out of impulsiveness or sympathy.
It is also settled that even a single bona fide ground of appeal is suficient to satisfy the arguability test.
Issues in the judgment
#The replying affidavit of the 2nd Respondent is inconsistently dated - it is described in one passage as sworn on 10th February 2026 by Paul Famba, yet counsel is later said to have relied on a replying affidavit 'dated 10th February 2026' and elsewhere the same day is given for the 1st Respondent's submissions; further, paragraph 2 refers to Nairobi Constitutional Petition No. E312 of 2025 while the application and other passages refer to Petition No. E 317 of 2025.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General v Katiba Institute & 23 others (Civil Appeal (Application) E031 of 2026) [2026] KECA 564 (KLR)", Case Analysis (2026). Civil Application of 27th January 2026 (arising from High Court Constitutional Petition No. E 317 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/564/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.